Opinion
No. CR 04 0214486
April 25, 2005
MEMORANDUM OF DECISION ON MOTION TO SUPPRESS
Six months after completing probation for his sexual assault of a fourteen-year-old girl in 1993, the accused, John Kaminski, a forty-nine-year-old man, brought another fourteen-year-old girl to his apartment and took photographs of her. The girl was alone, despite the fact that a "Model Release Form" which authorized Mr. Kaminski to photograph her and which he had given her mother the day before contained a provision that the mother was expected to be present at all photo sessions.
The accused had been a family friend of the girl and her mother for about four years before this picture-taking session on Tuesday, February 24, 2004. He picked her up and returned her not to her mother's residence on Camp Street in New Britain but to a location on Fairview Street in that city. While at the accused's residence, the girl agreed to change into a man's button-down dress shirt and did so in Mr. Kaminski's bedroom out of his view.
The accused told the girl to pose any way she liked. In some of the 30 photos taken the girl wore only thong panties on the lower portion of her body; in one of those photos, which was provided to the court, the girl is pictured sitting down with her knees drawn up to her chin and her crotch area exposed, covered only by the thong panties. In another photo the girl is pictured lying on her stomach wearing a man's dress shirt and thong panties, the dress shirt has raised up on her back and a portion of her buttocks is exposed.
This photograph was not provided to the court but was described to the police by the girl, and her description was included in the affidavit submitted in support of their application for a search warrant for the accused's apartment.
After taking the photographs the accused sent them via his computer to an unidentified third person, advising that person he would be taking more pictures on Friday, February 27, with a better camera and asking the recipient of these photos to let him know if he wanted those photographs as well. At Mr. Kaminski's request the fourteen-year-old agreed to meet him on Friday for the purpose of his taking more photos, and he asked her to wear "little girl type" panties on that date because, he said, "the company" liked the models to wear such panties.
While she was at the accused's apartment, the fourteen-year-old was also shown images from a computer web site named "Lil'Amber.com." This website features young females (preteens and young teenagers) dressed in panties, bathing suits and half shirts.
In 1999, apparently while still on probation for his sexual assault conviction, the accused had used a credit card to purchase access to a website featuring child pornography. This website had been the subject of a seizure carried out by the Dallas, Texas police department in the course of a nationwide investigation of child pornography and the internet, and the accused's name was found on a listing of individuals who had purchased access to the website.
While on probation the accused was self-employed in the janitorial and real estate maintenance business, and he had never mentioned to his probation officer that he was intending to go into the child modeling or photography fields.
All of the above facts are recited in an affidavit submitted to a Superior Court judge in support of an application for a warrant to search Mr. Kaminski's residence, to seize items described in the application and to submit those items to a forensic laboratory for examination and analysis. In addition, the affiants, two veteran New Britain detectives, relying on their "training and experience," informed the issuing judge that, although the images appearing on the "Lil'Amber" website did not appear to be child pornography, as defined in General Statutes § 53a-193(13), "persons who focus on children as sexual objects often collect these images [known as "child erotica"] as well as child pornography" and often use them in their seduction of child victims. Further, the affiants averred that "persons involved in sending or receiving child erotica or pornography tend to retain it for long periods of time" on their computers and in other formats, such as diskettes or CD-ROMS, that computer hardware, software and documentation are important to a criminal investigation both as storage media for information about crimes and as instrumentalities and/or evidence of the crimes, themselves, that "persons who focus on children as sexual objects often collect sexually explicit materials consisting of photographs, digital images, video files, audio tapes and files or other computer files, depicting children of a particular age group." Finally, the affiants state that to retrieve data from a computer system it is necessary for the entire system to be seized and submitted to a computer specialist for examination and analysis in a laboratory setting.
At the time of the affidavit in February 2004, "child pornography" was defined as "any material involving a live performance or photographic or other visual reproduction of a live performance which depicts a minor in a prohibited sexual act." General Statutes (Rev. to 2003) § 53a-193(13).
On the basis of this affidavit the search and seizure warrant was issued, the search conducted and certain seizures were made. The accused has moved to suppress "any and all items seized" by police officers executing the warrant on three grounds:
1. a lack of probable cause for believing that a search of the accused's residence would turn up contraband or the instrumentalities or evidence of criminal activity;
2. a lack of particularity in the description of the items to be seized;
3. the presence in the affidavit of material representations that were either intentionally false or made with reckless disregard as to their truth or falsity.
The accused filed a memorandum and supplemental memorandum in support of his motion, and the state filed a memorandum in opposition. The court heard argument on the motion to suppress on March 22, 2005.
I
The law regarding probable cause and the standards for reviewing the issuance of a search warrant may be found in State v. Buddhu, 264 Conn. 449, 459-60 (2003), cert. denied, 124 S.Ct. 2106 (2004):
We uphold the validity of [a search] warrant . . . [if] the affidavit at issue presented a substantial factual basis for the magistrate's conclusion that probable cause existed . . . [The magistrate is entitled to draw reasonable inferences from the facts presented. When a magistrate has determined that the warrant affidavit presents sufficient objective indicia of reliability to justify a search and has issued a warrant, a court reviewing that warrant at a subsequent suppression hearing should defer to the reasonable inferences drawn by the magistrate. When the circumstances for finding probable cause are detailed, when a substantial basis for crediting the source of information is apparent, and when a magistrate has in fact found probable cause, the reviewing court should not invalidate the warrant by application of rigid analytical categories . . .
Probable cause to search exists if: (1) there is probable cause to believe that the particular items sought to be seized are connected with criminal activity or will assist in a particular apprehension or conviction . . . and (2) there is probable cause to believe that the items sought to be seized will be found in the place to be searched . . . In determining the existence of probable cause to search, the issuing magistrate assesses all of the information set forth in the warrant affidavit and should make a practical, nontechnical decision whether . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place . . . We view the information in the affidavit in the light most favorable to upholding the magistrate's determination of probable cause . . . In a doubtful or marginal case . . . our constitutional preference for a judicial determination of probable cause leads us to afford deference to the [issuing judge's] determination . . . Probable cause, broadly defined, [comprises] such facts as would reasonably persuade an impartial and reasonable mind not merely to suspect or conjecture, but to believe that criminal activity has occurred.
(Internal quotation marks omitted.)
The accused argues forcefully that the facts recited in the affidavit submitted to the issuing judge do not add up to probable cause for a belief, as opposed to a suspicion or a conjecture, that evidence or the instrumentalities of criminal activity would be found in the accused's residence. He points to State v. Zarick, 227 Conn. 207, 220, cert. denied, 510 U.S. 1025 (1993), in which the Supreme Court indicated that photographing even naked or partially naked children is not a per se violation of the risk of injury statute. He emphasizes the age of his criminal conviction (11 years) and of his purchase of access to the pornographic website (5 years) and the absence of "fresh" evidence that his actions, as described in the affidavit, were criminal in nature. In particular, he cites Krukowski v. Swords, 15 F.Sup.2d 188 (D.Conn. 1998), for the proposition that conduct he claims is substantially similar to that described in the affidavit is not "within the core area of prohibited conduct articulated by prior state judicial decisions" construing the vague terms of the risk of injury statute. Id., 205.
The court agrees with the accused that, unless his conduct with the fourteen-year-old girl, as described in the affidavit, adds up to probable cause to believe that he violated the risk of injury statute, there is not probable cause to believe that evidence or the instrumentalities of that crime would be found in a search of his residence. Therefore, the court must determine what conduct has been found by Connecticut courts to be within that "core area" of prohibited conduct under § 53-21 and decide whether the accused's conduct falls within its ambit.
II
As far as this case is concerned, the pertinent portion of § 53-21 reads as follows:
Any person who . . . wilfully or unlawfully, causes or permits any child under the age of sixteen years to be placed in such a situation that . . . the health of such child is likely to be injured or the morals of such child are likely to be impaired . . . shall be guilty of a class C felony . . .
This portion of the statute also proscribes "any act likely to impair the health or morals of any such child," which the Supreme Court has held requires "acts directly perpetrated on the person of the minor and injurious to [the minor's] moral or physical well-being." State v. Dennis, 150 Conn. 245, 250 (1963). Accord: State v. Robert H., 273 Conn. 56, 74 (2005). Since the affiants made no claim that the accused perpetrated any acts directly on the person of the child on February 24, 2004, probable cause, if any, must be of a violation of the "situation" prong of this portion of the statute.
In State v. Schriver, 207 Conn. 456, 461-62 (1988), the Supreme Court found that this statute is constitutionally defective on its face due to the vagueness of its operative terms, such as a situation "likely to impair" a minor's morals. The statute was, nevertheless, saved from invalidity by the presence of prior decisions of the Court which supplied sufficient guidelines to citizens and enforcement authorities for determining what kind of conduct falls within its prohibitions and what kind of conduct is outside the statute's reach. Id., 462-68.
In Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972), the United States Supreme Court summarized the values promoted by the prohibition of vague laws. "First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application."
Generally speaking, the "situation" clause of § 53-21 criminalizes "deliberate indifference to, acquiescence in, or the creation of situations inimical to the minor's moral or physical welfare." State v. Pickering, 180 Conn. 54, 64 (1980). It "indicates the legislature's understanding that there is a broad class of intentional conduct that can put a child's well-being seriously at risk without any physical contact by the perpetrator." (Internal quotation marks omitted.) Krukowski v. Swords, supra, 15 F.Sup.2d 201. Actual injury to the child's health or morals is not necessary for there to be a violation of the statute, merely the creation of a situation "likely" to injure the child. State v. Branham, 56 Conn.App. 395, 402, cert. denied, 252 Conn. 937 (2000). In this context, "likely" has its ordinary meaning of "probably" or "in all probability." State v. Romero, 269 Conn. 481, 491-92 (2004). Under this provision of the statute the "likely" injury to the child's health includes an injury to her mental as well as physical health. State v. Payne, 240 Conn. 766, 771 (1997). No pattern of conduct or minimum number of occurrences are necessary for a charge of impairing the morals of a minor child; "[i]n a particular situation, one instance is enough." State v. Erzen, 29 Conn.App. 591, 597 (1992).
In a series of cases discussing the permissible application of the "situation" clause of § 53-21 the Supreme and Appellate Courts "have articulated a core area of prohibited conduct" that poses a likely danger to the health and morals of children. Krukowski v. Swords, supra, 15 F.Sup.2d 202. See, e.g., State v. Payne, supra, 240 Conn. 778 (defendant convicted for using threats to force three children to urinate into a cup); State v. Cutro, 37 Conn.App. 534, 536-37 (1995) (defendant convicted for masturbating in his automobile in shopping mall parking lot within sight of 14-year-old girl); State v. Erzen, supra, 29 Conn.App. 595-96 (defendant convicted for luring eight-year-old victims into secluded area, asking them to unzip his pants, exposing himself to them and touching his penis in front of them); State v. Tirado, 21 Conn.App. 449, 455 (defendant convicted for "continuing course of sexual conduct," including kissing, exposing himself to minor, and requesting that she engage in sexual contact), cert. denied, 215 Conn. 816 (1990); State v. Mancinone, 15 Conn.App. 251, 256 (defendant convicted for engaging in sexual activity with minor and providing minor with alcohol and illegal drugs), cert. denied, 209 Conn. 818 (1988), cert. denied, 489 U.S. 1017 (1989).
While there is a sexual element to several of these cases, it does not appear that only lewd or sexual conduct is prohibited by the statute. For example, in Payne the defendant compelled the three boys to expose themselves and urinate in a cup not for his sexual titillation but to furnish a "clean" urine sample for him to supply to his parole officer for random drug testing. State v. Payne, supra, 240 Conn. 769 n. 4. In State v. Scruggs, Superior Court, judicial district of New Haven at Meriden, Docket No. CR 02 0210921 (March 8, 2004, Frazzini, J.) ( 37 Conn. L. Rptr. 109), providing a home environment characterized by "extreme clutter and pervasive odor throughout the home [and] unsanitary bathroom facilities" was held to be within the reach of the statute insofar as it forbids placing a child in a situation where his health is likely to be injured. And, most recently, the Supreme Court has held that allowing a child to be near and have access to large quantities of marijuana constitutes placing a child in a situation where his health was likely to be impaired. State v. Padua, 273 Conn. 138, 159 (2005).
III
The conduct of the accused described in the warrant application exhibits both sexual and non-sexual elements which fit it within the "core" conduct proscribed by the risk of injury statute.
It bears repeating that what the court is here deciding is not whether there is sufficient evidence in the warrant application to support a conviction beyond a reasonable doubt but only whether there is enough evidence to establish probable cause for believing that a violation occurred and that evidence or instrumentalities of that violation will be found at the residence of the accused.
As was the case in State v. Eastwood, 83 Conn.App. 452, 462 (2004), the nature of the accused's prior conviction, one for the sexual assault of a fourteen-year-old girl, supplies a sexual motive for what might otherwise appear to be innocent conduct with this fourteen-year-old girl. In Eastwood the facts provided to the issuing judge recited only an arrest for alleged sexual activities with a thirteen-year-old boy; here the affidavit reflects the accused's conviction for the sexual assault of a girl the same age as the complainant in this case. Given the assaultive conduct of which the accused had previously been convicted, the "situation" he created for this fourteen-year-old was one in which not only her morals but also her health, physical as well as mental, were likely to be injured.
"A suspect's prior criminal record, even if inadmissible at trial, may be the basis for establishing probable cause." State v. Mordowanec, 259 Conn. 94, 111, cert. denied, 536 U.S. 910 (2002).
That the "situation" here was likely to impair the complainant's morals is further indicated by the accused's failure to wait for her mother to approve the modeling release he had provided her only the day before, by his picking her up not at her mother's house but at another location and by his going ahead with a photo session in the absence of her mother after telling the fourteen-year-old he only wanted to discuss her modeling career. Neither the management of a young girl's modeling career nor fashion photography were established businesses of the accused, and it would be a reasonable inference from all the facts and circumstances disclosed in the warrant application that this was a subterfuge devised by him to lure this child into a situation harmful to her moral, mental and even physical welfare.
Two other elements add to the likelihood that this situation would likely impair the child's morals and injure her health. In addition to taking 30 photographs, some of them in scanty attire and revealing intimate portions of her anatomy, the accused then sent these photos, or at least some of them, into cyberspace, to a person (or persons) unknown, promising more in the future. In addition, he introduced the fourteen-year-old to a web site which, while perhaps not pornographic, is, in the opinion of the affiants, of the type used by child pornographers and others who focus on children as sexual objects to seduce or entice such children into sexual conduct.
The accused claims that the photos he took were not obscene and not pornographic; thus, all that the affidavit reveals is innocent picture-taking, the kind permitted by the injunction issued by the federal court in Krukowski, supra, 15 F.Sup.2d 188. As the Supreme Court pointed out in State v. Buddhu, supra, 264 Conn. 462-63, however, ". . . innocent behavior will frequently provide the basis for a showing of probable cause . . . [I]n making a determination of probable cause the relevant inquiry is not whether particular conduct is innocent or guilty, but the degree of suspicion that attaches to particular types of non criminal acts." The totality of the circumstances here permits the reasonable inference that the accused's intentions went beyond an innocent initial photo session for a budding child model and contemplated involving her at least in internet child pornography if not sexual conduct with the accused, and that the situation he created for her was "inimical to [her] moral or physical welfare." State v. Pickering, supra, 180 Conn. 64.
In the Krukowski case relied on by the accused the United States District Court enjoined future prosecutions of Mr. Krukowski for "engaging in non-obscene, non-pornographic modeling sessions with a fifteen-year-old model who participates voluntarily and with the consent of a parent, and in a context devoid of any allegations of sexually explicit physical conduct by the accused," Krukowski v. Swords, supra, 15 F.Sup.2d 205, because there were no judicial decisions of Connecticut courts holding that such conduct was proscribed by § 53-21. Several factors present here distinguish this accused's conduct from the conduct permitted in the Krukowski case.
Unlike this accused, Mr. Krukowski was not a convicted child sex offender when he conducted his photo sessions. The fifteen-year-old's mother was present at three of the four photo sessions conducted by Mr. Krukowski, while here she was not present. Id., 191. In fact, the complainant's mother here had never signed a consent for her daughter to participate in any modeling sessions with the accused while the mother in Mr. Krukowski's case had given her written permission. Id., 190. Mr. Krukowski was never alone with the subject of his photo sessions since the photographs were taken by a professional photographer, who also had written permission from the minor and her mother. Id., 191. This accused not only took the photographs of the complainant while alone with her but also sent them out over the internet to unidentified third parties and showed the complainant a web site containing erotic material used to seduce or entice children to participate in immoral activity. These factors add a whole different dimension to the photo session conducted by this accused that was not present in the Krukowski case. Because the conduct described in the affidavit supporting the search warrant application here is substantially different from the conduct permitted in Krukowski, the court does not find the issuance of the injunction there persuasive on the question whether the conduct described here establishes probable cause to believe that § 53-21 was violated.
The court concludes that the facts contained in the affidavit, along with the reasonable inferences to be drawn from those facts, provided a substantial factual basis for the magistrate's conclusion that probable cause existed to believe that evidence and/or the instrumentalities of a crime; viz., a violation of § 53-21, would be present at the residence of the accused.
IV
The fourth amendment to the United States Constitution requires that all search warrants "particularly describ[e] the place to be searched, and the persons or things to be seized." Relying on this amendment, the accused claims that "the scope of the search authorized was beyond that necessary to recover the evidence of" the crime of risk of injury. Memorandum in Support of the Defendant's Motion to Suppress, January 6, 2005, p. 17. The court agrees, in part.
Article first, § 7 of the Constitution of Connecticut also provides that "no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be . . ." but the accused makes no separate claim under the state constitution.
There are three salutary purposes served by this constitutional limitation: preventing "general exploratory rummaging in a person's belongings;" Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971); remedying seizures of objects upon the mistaken assumption that they fall within the issuing judge's authorization; Marron v. United States, 275 U.S. 192, 197 (1927) and avoiding "the issue of warrants on loose, vague or doubtful bases of fact." Go-Bart Importing Co. v. United States, 282 U.S. 344, 357 (1931). See State v. Johnson, 160 Conn. 28, 33-37 (1970); State v. Jarrett, 82 Conn.App. 489, 499, cert. denied, 269 Conn. 911 (2004). The requirement of particularity is closely tied to the requirement of probable cause because an imprecise or overbroad description of the things to be seized may raise some question whether the described items, in fact, are connected with the criminal activity described in the application for the warrant. "In this connection, it must be emphasized that an otherwise unobjectionable description of the objects to be seized is defective if it is broader than can be justified by the probable cause upon which the warrant is based." 2 W. LaFave, Search and Seizure (4th Ed. 2004) § 4.6(a), p. 607.
Professor LaFave cites as illustrative of this proposition the case of VonderAhe v. Howland, 508 F.2d 364 (9th Cir. 1974), in which the affidavits supporting the application for a warrant to search a dentist's office described the records in which the IRS was interested as "yellow sheets and green cards," but the warrant authorized the seizure of all "fiscal records" of the dentist's practice. The court held that, "although there may have been `probable cause' to search for and seize the yellow sheets and green cards for 1966 and 1967, there was no probable cause shown for a seizure of all the doctor's dental books and records, or his personal and private papers." Id., 369.
The warrant issued in this matter described quite specifically computer and photographic equipment for which adequate probable cause is established in the affidavit supporting the application. The same may be said for its authorization to seize "collections of photographs depicting children in a particular age group in nude or seminude poses, or engaging in sexual activity," given the accused's criminal history, his patronization of a pornographic web site, his showing the girl erotic images on the "Lil'Amber.com" web site, and the informed opinions of the affiants that persons who view children as sexual objects or who trade in pornography or erotica over the internet use such material to seduce children.
The Eastwood case is instructive on the scope of a permissible search once probable cause of the existence of criminal activity is present. There, the accused asked three young boys to get in his van and accompany him to another location; when they refused, he threatened to kill them. State v. Eastwood, supra, 83 Conn.App. at 457-58. The warrant at issue authorized a search of the defendant's van not only for weapons the defendant might have used to make good on his threats but also for computer and photographic equipment, films and photographs of a sexual nature and toys, books and computer games. Id., 456-57. The Court upheld all of the seizures made pursuant to the warrant.
The computer and photographic equipment and films and photographs of a sexual nature, the Court found, "would have provided evidence of the defendant's motive and were connected to the alleged criminal activity for which the defendant was arrested." Id., 462. The facts concerning the defendant's requests to the boys, together with his prior arrest for sexual conduct with another underage boy, "created a reasonable suspicion that there was a sexual motive underlying the defendant's unusual conduct." Id. Similarly, the Court found it "logical to infer from the facts presented that the defendant was sexually attracted to young boys," Id., 463, and the presence of toys, books and computer games in his van, "items that would logically attract children," Id., would have corroborated the boys' allegations and "would have been further evidence that reflected the defendant's criminal scheme." Id.
So, too, the contents of this accused's computer system, the images contained on CD and DVD disks and other electronic storage media, the presence of photographs and undeveloped film showing sexual activity involving children — all of these items and others authorized to be seized pursuant to the warrant could be relevant to proving that he "wilfully or unlawfully" created a situation in which the fourteen-year-old girl's health and/or morals were likely to be impaired. All that is required is "that the particular items sought to be seized are connected with criminal activity or will assist in a particular apprehension or conviction." State v. Buddhu, supra, 264 Conn. at 460.
The court has searched the affidavit in vain, however, for facts which would justify the search and seizure of "hand written notes, mail, canceled mail, phone records, address books" of the accused, all of which was authorized by the warrant. Nor can the court conceive of any reasonable inferences from the facts in the affidavit which would support a conclusion that these personal records are either evidence or instrumentalities of the crime of risk of injury. It should be emphasized that these categories of records were not limited in any way; so, for example, the police were free to search for and seize any "hand written notes" of the accused no matter when written, to whom or on what subject matter.
When a search warrant is issued to search a certain place for several items and some are not described with sufficient particularity, or probable cause has not been established as to some of them, the entire warrant is not tainted. The seizure of those items which are particularly described and for which there is probable cause may be upheld despite the incidental defects present in the warrant. See generally 2 W. LaFave, supra, § 4.6(f). For example, in State v. Johnson, supra, 160 Conn. 28, the Supreme Court suppressed a U.S. Army field manual entitled "Boobytraps" seized pursuant to a warrant authorizing a search for and seizure of "Dynamite, Blasting Caps, Guns, Ammunition, and any other paraphernalia which could be used to violate Sec. 54-197 of the Connecticut General Statutes." Id., 34. The Court recognized the language referring to "Sec. 54-197 of the Connecticut General Statutes," the conspiracy statute, as creating a "general warrant," which "does not `particularly' describe the `things to be seized' but purports to authorize an officer executing the warrant to seize without limitation any item of personal property which could be used as the means of committing the crime of conspiracy." Id., 35.
But, in another prosecution of the same defendant arising out of the discovery of marijuana by the officers executing the same search warrant the Court rejected his claim that the seizure of the drugs was illegal because it was made in the course of the officers' executing a "general warrant." State v. Johnson, 162 Conn. 215, 219 (1972). Only that part of the search warrant was invalid which authorized the seizure of paraphernalia that could be used to violate the conspiracy statute. Id., 220. "The entry into the premises authorized by the warrant in question was valid and the search for the articles specified in that warrant was legally and constitutionally permissible." Id. See also United States v. George, 975 F.2d 72, 79 (2d Cir. 1992) (fruits of search generally not all suppressed merely because some evidence seized pursuant to the invalid portion of a warrant).
The court went on to hold that the seizure of marijuana not specified in the warrant was legal because its possession was a crime, and it was discovered in the course of a legal search. State v. Johnson, supra, 162 Conn. 221.
The return for and inventory of property seized pursuant to the warrant issued here contains 21 items, of which 19 appear clearly to be authorized as property which was particularly described and for which probable cause was established. The seizure of items 7 ("1 brown bag containing documents, catalogues, photographs, letters and papers") and 20 ("1 bag containing several documents including an internet receipt for Rohypnol tablets"), however, could only have been made pursuant to those portions of the warrant which the court holds ware not described with sufficient particularity to satisfy the Constitution and as to which probable cause was not established in the application; viz., "hand written notes, mail, canceled mail, phone records, address books." Accordingly, the motion to suppress is granted as to those two items.
If the "photographs" listed as part of item 7 in the return and inventory depict "children in a particular age group in nude or seminude poses, or engaging in sexual activity," the seizure of such photographs was properly authorized by the warrant, and they are not suppressed.
V
It is beyond question that false statements, as well as material omissions, in an affidavit submitted in support of an application for a search warrant which are made knowingly and intentionally or with reckless disregard for the truth will, if necessary to a finding of probable cause, void the warrant. The fruits of the search incident to the warrant must be excluded to the same extent as if probable cause was lacking on the face of the affidavit. See Franks v. Delaware, 438 U.S. 154, 156 (1978); State v. Stepey, 191 Conn. 233, 238 (1983), cert. denied, 465 U.S. 1084 (1984); State v. Ferguson, 260 Conn. 339, 363-64 (2002).
The accused attacks two sentences in the affidavit as materially false and made either knowingly and intentionally or with reckless disregard for their truth. The first appears in the sixth paragraph of the affidavit and reads as follows: "The fourteen-year-old victim then posed for photos for Kaminski wearing nothing but the man's shirt and `thong' panties." The second appears in the thirteenth paragraph and reads as follows: "The [affiants] viewed this photo and it does depict the victim, dressed only in an oversized shirt and apparent underwear, sitting down with her knees up to her chin, exposing her [crotch] area which is covered by her underwear." The alleged falsity is that the fourteen-year-old complainant wore not only a "man's shirt" or an "oversized shirt" on the top half of her body but that, under that shirt, she had on a black and gray sweater. Memorandum in Support of the Defendant's Motion to Suppress, supra, p. 19.
There seems to be no real question that the statement in the affidavit describing the clothing on the top portion of the fourteen-year-old's body is inaccurate; two photographs attached to the defendant's memorandum in support of his motion show the fourteen-year-old clad in the black and gray sweater, and a third photograph, apparently the one described in the thirteenth paragraph of the affidavit, shows a small portion of the black sleeve of the same sweater protruding from the right cuff of the oversized man's shirt worn by the girl. To claim that this inaccurate statement was necessary to a finding of probable cause, however, borders on the fanciful.
Without revisiting the detailed recitation of the allegations in the affidavit with which this memorandum began, suffice it to say that it reflected that a convicted child sex offender took a fourteen-year-old girl to his apartment, alone; while there he took photos of her in at least some of which her crotch area and her buttocks were exposed or scantily clad; he then sent these photos over the internet to unidentified third persons and induced the girl to view photos on a web site specializing in erotic pictures of similarly clad young girls. He made a date to take additional pictures of the fourteen-year-old, which he had already offered over the internet. All of this was done without the permission of the girl's mother and without her being present.
"If the allegedly false statement is set aside . . . and there remains sufficient evidence to establish probable cause [for the issuance of the search warrant]," a hearing to determine whether the false statement or material omission was made knowingly and intentionally or with reckless disregard for the truth is not necessary. (Internal quotation marks omitted.) State v. Ferguson, supra, 260 Conn. 363. If these statements describing how the girl was dressed were set aside, there is ample evidence to support a finding of probable cause. Looked at another way, if the statements had been accurate and reflected that, under the shirt which covered the top portion of her body, she wore a sweater, but that her crotch area was covered only by thong panties and was exposed in one of the photographs and her buttocks in another there would still be plenty of evidence present in the affidavit to justify the issuing judge in finding probable cause. How the girl's upper body was clothed pales in significance when her intimate parts were photographed exposed or covered only by thong panties.
VI
The motion to suppress is GRANTED in part, and items 7 and 20 as listed in the return and inventory are ordered suppressed. Otherwise, the motion to suppress is DENIED.
But see footnote 10, supra.
BY THE COURT
Joseph M. Shortall, J.